AB v The Chief Constable of North Wales Police

The claim relates to the decision of Sergeant Dawson (as he then was) to deploy PAVAincapacitantspray on the Claimant when he was detained in the custody suite at Caernarfon police station on 25 May 2018.

Proceedings were issued on 5 November 2024 and the matter came before me for a fully contested trial on 1 to 3 June 2026.

The Claimant relies on a statement from himself and from Natasha Palmer. She did not attend to give evidence.

The Defendant relies on statements from PS Dawson, CDO Philip Edwards, DC Aron Humphreys, CDO Neil Jones and PC Paul Kinnaird. DC Humphreys’ evidence was agreed at trial so he did not give evidence in the court. Neil Jones was off sick so did not attend court to give evidence. I heard evidence from the other witnesses.

I have also been provided with a trial bundle and supplementary bundle which includes a redacted copy of the IOPC investigation report and a transcript of the CCTV evidence from the material time. I have also viewed the relevant CCTV evidence more than once during the course of the trial in the courtroom. There is a difficulty in that the sound quality is not always very clear. There is no audio in the cell at all. A transcript has been provided and agreed by the parties’ solicitors but certain sentences in the transcript prepared by the IOPC investigator are not agreed by the Defendant and in his evidence to the court, Sergeant Dawson denied that he said some of the things which the IOPC investigator had noted from the CCTV footage. I could not hear those things said because of the poor sound quality but ultimately, the CCTV footage is still useful as it clearly shows what happened and it provides a useful timeline for my purposes.

On 24 May 2018 the Claimant decided to kill himself by jumping from the Menai suspension bridge which links Ynys Mon (Anglesey) with the mainland. He was detained by the police at the bridge and conveyed to Hergest, the local mental health unit at the hospital in Bangor where he was detained under section 136 Mental Health Act 1982. He was assessed as having capacity. He kicked a door trying to leave, causing criminal damage. He was arrested and conveyed to the Caernarfon Custody Suite where he was observed overnight. The Claimant was well known to the Defendant and had active markers for drugs, self-harm, weapons and violence. It was known that he had a significant history of suicide attempts and mental health difficulties. Whilst in his cell, he self-harmed. It was whilst he was banging his head against the wall of the cell that Sergeant Dawson deployed PAVA spray on the Claimant. The incident is captured on CCTV which I have viewed on several occasions. It is alleged by the Claimant that this was an unlawful use of force.

I make the following comments in terms of the oral evidence given at trial.

He remembered very little of events at the material time. He gave his evidence in Welsh and English. He was clearly an honest historian. The problem was that he could not remember much. He remembered hitting his head on the wall of his cell. He explained to me that this was out of frustration and was not done on purpose. He played down the injuries sustained by him when he was hitting his head against the wall as “just a little graze”, “Toni’m yn nocio fy mhen yn galed (I wasn’t hitting my head hard) Nathon nhw ddim fynd a fi irr hosbitol (they didn’t take me to the hospital), Dwi’n jysd cofio nhw’n sbraeio fi (I just remember them spraying me).”

He agreed that Sergeant Dawson may have spoken to him prior to spraying him. He denied threatening him. He denied that Sergeantt Dawson’s intervention prevented him from causing himself a significant injury. He said that the first shot of captor spray went into his eyes and the second into his mouth. When it was put to him that the PAVA spray stopped him from self-harming again, his reply was “be di’r point (What is the point) Swn ni wedi cario ymlaen sa nhw wedi sbraeio fi eto (I would have carried on if they had sprayed me again) Dwi’m isio cwffio gyda’r officers (I don’t want to fight with the officers)”. He remembered that he was taken to the exercise yard after the incident and that as it was raining, the effect of the captor spray was heightened.

He has now retired but was a custody sergeant at the material time and he was the one who sprayed the Claimant with the captor spray.

He explained that only one complaint had been made to the IOPC about his use of PAVA spray and that as a result of that, the IOPC had looked into all instances when he had used PAVA spray. The IOPC approached individuals who had been sprayed by him and as a result 14 individuals (including the Claimant) were produced who alleged inappropriate use by him of PAVA spray. They had not complained about it prior to the IOPC seeking them out.

He had no recollection of the Claimant’s incident but that having watched CCTV of the incident and upon reading the custody records, he had some recollection and he could also comment on what his usual practice was. He has a medical condition which affects his short-term memory.

That day he had been booking in another detainee and he had to stop this process to deal with the Claimant because of concern that the Claimant was self-harming.

He had put gloves on and watched the Claimant on the CCTV and had picked up the PAVA spray from the custody suite desk. He said that experience had shown him that it was better to have the PAVA spray ready in his hand than to need to retrieve it from a belt as if he were attacked by someone he would find it difficult to defend himself if he were having to retrieve the spray. Whilst he was doing this and walking to the cell (which is not a very long distance from the custody desk) he was thinking about how to deal with the Claimant.

He said that he used the spray on the Claimant to stop him harming himself. He described it as a successful intervention because no one was harmed in the process and because the Claimant did stop banging his head on the wall.

He said that he did not feel that the Claimant was a threat to him as he entered the cell. He described the Claimant as “passive aggressive” as he approached him but he was not threatening him. “When I took his arm he tensed. I felt no impact from the initial spray so I gave a second spray so I felt that the captor had taken effect. Walking up to him he was passive but when I took hold of him he tensed up so I believed I was under threat and was going to be assaulted. My intention was to go there and stop him self harming”. He commented that he felt the degree of resistance from the Claimant as he took hold of his arm and he was concerned at that stage that he was going to be assaulted. He explained that he had 15 years’ experience as a police officer at that time and he was very fine tuned to people’s body language. “It was when I got hold of him that it went from passive to reactive resistance”. When it was put to him by Counsel for the Claimant that the Claimant’s head had dropped after the first dose of PAVA spray was deployed because it had taken effect, he denied this, saying that the Claimant had dropped his head to avoid the spray.

During the course of Sergeant Dawson’s evidence, some of the CCTV was played and 9 seconds pass between the hatch of the cell door opening and Sergeant Dawson entering the Claimant’s cell.

Sergeant Dawson said that he spent some time talking to the Claimant and asked him to stop banging his head. As he approached him, he repeatedly asked him to stop head banging. He had also asked the Claimant to stop head banging when he was talking to him through the hatch.

He was trained in the use of PAVA spray. He clearly felt that it was a harmless way of controlling an individual. He had been sprayed himself, both deliberately and inadvertently in the past and stressed that the effects are very short term and wear off after about 30 minutes. He also stated that using it within 1 metre of the individual (which is what happened here) which the guidance says is not advisable was not dangerous. He had been sprayed himself by a detainee within less than a metre and he had not suffered any long-term consequences.

He also explained that in terms of use of PAVA spray, this is the level of intervention to use if communication fails. PAVA spray is second and hands on force is third. He felt that the Claimant’s self-harming behaviours were escalating (prior to the head banging he had tied his jogging bottoms as a ligature around his neck and they had been replaced with a smock) and that accordingly it was appropriate to use PAVA spray. Hands on was inappropriate as there was a risk that he and his colleagues would end up fighting with the Claimant in the cell.

He said that after the incident he had guided the Claimant to the cell bed and had then left the cell itself as he had also been affected by the PAVA spray. He denied gloating after the incident.

Sergeant Dawson came across well in the witness box. As a former police officer he will have been trained in giving evidence in court and this experience showed. He is clearly convinced that he acted appropriately in this case.

He is a serving officer in the Defendant’s force and was at the material time. He happened to be in the custody suite at the time having brought a detainee in. He thought he was about to leave as he had his bag on his shoulder. After the incident, he can be seen patting the Claimant on his back in an attempt to reassure him. He had also been PAVA sprayed during the course of his training as a police officer and he therefore knew how to deal with someone who had been sprayed. In his statement he says that PAVA spray “does not stop a person from running, lashing out or assaulting others. Once the Captor spray had been used to distract the Claimant, it was still necessary to restrain him for both his safety and that of the officers present, and also to stop the Claimant from rubbing his eyes” as that is the worst thing the Claimant could do after being sprayed in the eyes.

He said that he had been interviewed in the police station by the IOPC about the incident but that he had very little recollection of the incident itself. He thought that Sergeant Dawson had told the Claimant to stop once.

He said that it is common for police to intervene in the cells and sometimes PAVA spray is deployed. He did not recall Sergeant Dawson using PAVA spray on a detainee before this.

He said that he was aware that Sergeant Dawson had shaken the PAVA spray at the custody desk before he went to the cell and felt that that made sense as it needs to be shaken to be used effectively. He felt that it made sense for Sergeant Dawson to prepare himself at the custody desk. He would have done the same if he needed to go into a cell and potentially intervene. He felt that Sergeant Dawson’s use of PAVA spray was reasonable in the circumstances and that it was “next to words of engaging”.

I noted that in 2017 PC Kinnaird attended a vulnerability course and I asked him what he had learned on that course in terms of dealing with vulnerable people like the Claimant. He said that he did not recall what he had been told on the course. He said that he thought that about 75% of people detained in the custody suite have mental health problems. The custody sergeant tells the detainees that he or she is there to look after them. He had no concerns about Sergeant Dawson’s abilities as a custody sergeant. He described him as a strong character, very knowledgeable, quite pedantic and that he would record use of force and keep the custody record up to date. PC Kinnaird would seek Sergeant Dawson’s advice at times.

He has been retired from working as a police officer for 16 years. At the material time, he had retired as a police sergeant but had returned to work as a custody detention officer, a civilian role.

He had carried out observations on the Claimant on both 24 and 25 May 2018. He had not witnessed the PAVA spray incident. He had not noticed anything out of the ordinary until he had seen the Claimant with the tracksuit bottoms around his neck on CCTV, shortly before the PAVA incident and he and a colleague had gone to see to him. He had not been aware that the Claimant had been headbanging before this. He accepted that he may have said “so I guess we are spraying him then” (which is audible on the CCTV transcript prior to Sergeant Dawson entering the cell) or similar or that it could have been someone else. He accepted that this was said but denied that it meant that the plan was definitely to spray the Claimant. It simply meant that as Sergeant Dawson was taking the spray with him to the cell that it might be used.

He said that as a CDO, his only way of dealing with a detainee was to communicate, to ask the detainee how they were and to have a chat with them if he had time.

Counsel for the parties filed skeleton arguments prior to the hearing. After the evidence was complete, Counsel for the Defendant prepared two notes, one in relation to liability and the other in relation to quantum.

The crux of this case relates to the decision of Sergeant Dawson to spray the Claimant with PAVA spray and that is what I propose to concentrate this judgment upon. I have watched the CCTV images twice in court and I have reviewed the section relating to the PAVA spray incident on several occasions during the course of writing this judgment. I set out below what I consider to be the important aspects of that CCTV.

The Claimant arrives at the custody suite. He is abusive. He is put in a holding cell. His handcuffs are moved from in front of his body to behind his body as he is harming himself with them when they are applied to him with his arms in front of his body.

Later on we see the booking in procedure. The Claimant is standing at the desk. He is swearing but is still. He is asked by the Welsh speaking custody sergeant about suicidal ideation, and he explains that he was on the Menai suspension bridge, standing on the unsafe side of the railings. He confirms that he intends to return to either the bridge or the A55 expressway when he is released from custody to kill himself.

The sergeant removes the handcuffs from him, explaining that this is because he has been calm with him whilst talking to him. It is noteworthy that this sergeant is very calm in his tone with the Claimant, and it appears that this has a calming effect on the Claimant. He explains to him that “dwi’n gyfrifol am dy safety ti. Tra ti yma ti’n saff” (I am responsible for your safety. Whilst you are here you are safe.) He is thereafter placed in a cell.

Later that day whilst in the cell he bangs his head against the wall. He then goes to bed. Two people then come into his cell and make the Claimant wear a rip resistant smock. He has to remove his jogging bottoms. He is placed on level 4 observations.

He is later charged and remanded in custody before appearing before the magistrates. This is for safety reasons.

16.05 hours – The Claimant is sitting quietly on the edge of his bed. He stands and walks to the cell wall and starts hitting his head on the wall. By this stage he is back on level 1 observation levels. The headbanging appears to last for a considerable period of time. He then sits on his bed again. He goes under the blanket. He appears to remove the jogging bottoms and use them as a ligature around his neck. Two Custody Detention Officers go into the cell. He is again provided with a gown and his clothing is removed. A custody sergeant (not sergeant Dawson) also visits the cell. He is left alone in his cell.

He starts banging his head on the wall of his cell again. The banging can be heard in the reception area. Sergeant Dawson is standing at the computer. There is reference to “banging” and “pretending” but I cannot make out who said these words or the full sentences. After a discussion with the other officers Sergeant Dawson shakes the PAVA spray which is kept in the booking in area (on the desk), places gloves on his hands and walks with purpose to the Claimant’s cell followed by the other custody sergeant, the CDO and two police constables. The Claimant continues to bang his head.

The custody sergeant opens the hatch, and Sergeant Dawson speaks to the Claimant through the hatch. 9 seconds elapse between the hatch opening and Sergeant Dawson entering the cell. Sergeant Dawson alone walks into the cell as soon as the door is opened. He walks at some speed towards the Claimant, takes his right arm, turns the Claimant towards him and sprays him with two doses of PAVA spray. He then helps guide the Claimant to the bed where the Claimant sits, restrained and assisted by other officers. Sergeant Dawson goes to the door of the cell. He appears to be affected by the PAVA spray. Other officers sit with the Claimant and attend to his needs.

The footage from the custody desk has audio and one can hear the Claimant scream out in distress as a result of the PAVA spray being deployed on him. Later he can be seen being accompanied to the exercise yard, clearly still in distress.

The Claimant’s case has moved considerably during the course of this trial. Counsel for the Claimant submits that Sergeant Dawson’s use of force is unreasonable, particularly in the context of a Claimant who appears to be experiencing a crisis with his mental health and had been threatening to throw himself off the Menai suspension bridge only the day before. Whilst it was proportionate for Sergeant Dawson to place his hand upon the Claimant’s arm, there was inadequate communication with the Claimant before deploying the PAVA spray. It is significant that Sergeant Dawson never mentioned that the Claimant threatened him. He simply said that he felt the Claimant’s arm tensing up when he put his hand on it and that this could be seen as a threat towards him based on his experience as a police officer of 15 years. The fact that someone says “I guess we are spraying him then” when Sergeant Dawson is in the custody reception area shaking the PAVA spray supports the Claimant’s case that it is likely that Sergeant Dawson intended to spray the Claimant at that stage.

Counsel for the Defendant submits that Sergeant Dawson honestly believed that it was necessary to deploy the PAVA spray. The crux of the case is whether it was objectively reasonable. In that regard, he submits that I need to put myself in Sergeant Dawson’s shoes and consider whether his decision to spray the Claimant was reasonable on an objective basis. One cannot descend into unrealistic standards of detached reflection. One has to consider the overall circumstances of the case, the fact that the Claimant was seriously unwell and presented a risk of self-harm. The actions of Sergeant Dawson were reasonable both subjectively and objectively and were also a proportionate measure. It would be unrealistic to expect Sergeant Dawson to have done more before deploying the PAVA spray. The risk of self-harm on the part of the Claimant was very serious and Sergeant Dawson’s decision was appropriate in all the circumstances.

The law is agreed between the parties, and I set it out below.

In Gestmin v Credit Suisse (UK) Limited [2013] EWHC 3560 (COMM), Leggatt J (as he then was) made several observations at paragraphs 15 to 23 of the judgment as to the proper approach to the relationship between contemporaneous documentary evidence and oral testimony. In particular: -

It is trite law that by virtue of s.117 PACE and under common law (self-defence and defence of another), the officers were entitled to use reasonable force to (i) restrain the Claimant from further acts of self-harm, (ii) bring the Claimant under control; and (iii) mitigate the risk posed to officers and the Claimant during the incident. Further, reasonable force can be used to stop someone from self-harming in accordance with a police officer's responsibilities under Article 2 of the Human Rights Act.

Police and Criminal Evidence Act 1984 – Code C expressly states at section 1.14 that: -

“when carrying out duties conferred or imposed on them that also entitle them to use reasonable force, for example:

•

when at a police station carrying out the duty to keep detainees for whom they are responsible under control and to assist any police officer or designated person to keep any detainee under control and to prevent their escape;

•

when securing, or assisting any police officer or designated person in securing the detention of a person at a police station;

•

when escorting, or assisting any police officer or designated person in escorting, a detainee within a police station;

•

for the purpose of saving life or limb; or

•

preventing serious damage to property”

A helpful summary as to the correct approach to be adopted in use of force claims is provided in Afriyie v Commissioner of Police for the City of London [2024] EWCA Civ 1269, at 35: -

“This is a civil claim for assault and battery. Unlike a criminal case where the defendant has no burden of proof, the burden is on a defendant to a civil claim where the issue is self-defence or defence of another and/or the use of the power in section 3 of the 1967 Act. In criminal law an honest but mistaken belief, even if it might be considered unreasonable, may be sufficient to found the defence. In a civil claim, the defendant must show that he honestly and reasonably believed that it was necessary to defend himself or defend another, in addition to showing that the force used was reasonable in all the circumstances: see Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] AC 962; Chief Constable of Merseyside v McCarthy [2016] EWCA Crim 1257 at [30].2

The test identified by the judge in this case properly reflected Ashley and McCarthy. The requirement that the defendant must prove that the force used was reasonable in all the circumstances involves an assessment of the proportionality of the force used. The issue is not just whether the use of force was reasonable in the circumstances as the defendant believe them to be. The question is whether the degree and nature of the force used was reasonable. Contrary to a submission made in writing on behalf of the appellant, an assessment of the reasonableness of the force used must involve a consideration of how proportionate that response was to the overall circumstances facing the defendant.

There is considerable authority on how the reasonable use of force is to be interpreted. For example, in Reed v Wastie [1972] Crim LR 121 it was said “that one does not use jeweller’s scales to measure reasonable force” (as cited in in the judgment of Beldam LJ in Cross v Kirkby [2000] EWCA Civ 426, and also in Clark v Chief Constable of Merseyside Police [2023] EWHC 2565 (KB), para 44).

Further, in Cross v Kirkby (2000) Judge LJ said in relation to someone using self-defence that “the law does not require him to measure the violence to be deployed with mathematical precision”. In that case, the medical evidence had concluded that the force used was greater than average, but the court said that this was not a basis for overlooking the wider question of whether the Defendant had done what he honestly thought necessary for his own defence in the anguish of the moment.

The effect of the authorities is to confirm that the level of force used must be considered broadly on consideration of all the circumstances and not weighed with precision.

Section 76 Criminal Justice and Immigration Act 2008 is also of assistance of how the use of reasonable force should be viewed. It states in part: -

In Goodenough & Anor v Thames Valley Police [2020] EWHC 695 (QB) Mr Justice Turner gave guidance on the assessment of conduct, stating at paragraph 45:-

The court cannot and must not break down the force used by the officers to a minute level. It must look at the purpose for which the force was used, which was entirely legitimate and necessary. It must look at the circumstances including the nature of the Claimant’s behaviour and the fact that officers should not have to place themselves unduly at risk whilst taking active steps (cognisant with their duty) to protect the Claimant from himself. It must look at the nature and level of the force used more than the outcome.

Further in McPherson v Chief Constable of Nottinghamshire [2016] EWCA Civ 6, it was found that even if the use of CS Spray was undertaken “too close” or “contrary to policy” that did not make its use in such circumstances unreasonable (§17 and 18).

A worked example of the correct approach can be found in Clark v Chief Constable of Merseyside Police [2023] EWHC 2565 (KB). On appeal, and having lost at first instance, the Claimant alleged that being punched whilst prone on the ground was unlawful. There was an issue as to whether the Claimant had grabbed the officer prior to the punches being delivered. On appeal, Mr Justice Richie dismissed the appeal and stated: -

For me to dismiss this claim, the Defendant has to prove, on the balance of probabilities, that:

PC Kinnaird’s evidence on this was helpful. He described Sergeant Dawson as a strong character. He was strict with the officers in the custody suite. He was very knowledgeable, quite pedantic and would keep the custody record up to date. He was possibly blunter with detainees than others. He was an experienced police officer who had spent time on the beat in Holyhead. Sergeant Dawson certainly struck me as someone who would not put up with any nonsense.

Sergeant Dawson was also clearly impressed with PAVA spray as a way of addressing an unpleasant incident. Within his statement he says that “(paragraph 14) When compared with other options available to Police Officers and certainly compared with the use of a baton, Captor Spray is a safe option; it cannot brake (sic) bones, and it cannot kill. On my last safety training course in November 2018, I recall having a conversation with a trainer, Mr Bracegirdle, in which he advised that Captor Spray was an underused resource”. (Captor spray is one of the manufacturers’ make of PAVA spray.) At paragraph 27 of his statement he says that “As an incapacitant, it can prevent a situation escalating and can stop instances of self-harm. It can also de-escalate, violent, or potentially violent, situations and bring them to an end without having to resort to physical hands-on techniques or other methods of using force, such as with a baton”.

Counsel for the Defendant submits that the fact that officers are subject to PAVA spray in training demonstrates that it is a safe technique, albeit with very unpleasant transient symptoms designed to incapacitate. Furthermore, he makes the point that, unlike a Taser, PAVA spray cannot kill a person.

I have no hesitation in finding that Sergeant Dawson honestly believed that the use of PAVA spray was necessary to defend himself or another. His evidence was rather confusing as to who he was defending. He was clearly wanting to stop the Claimant from self-harming and this was successful. However, he also told me that as he took the Claimant’s arm he felt him tense up, and although he did not feel that the Claimant presented a threat to others prior to that, he does appear to have been concerned at that stage that the Claimant now presented a threat to him. He told me that “as I approached him (the Claimant) he was passive aggressive. He was not threatening me. When I took his arm he tensed….Walking up to him he was passive but when I took hold of him he tensed up so I believed I was under threat and was going to be assaulted. My intention was to go there and stop him self-harming. When I walked in there, the degree of resistance changed. Tensing up and turning, you look at being assaulted. I had 15 years’ experience as a police officer. You are very fine tuned to people’s body language…. Walking into the cell he was not being threatening to me. He was banging his head against the wall. My concern was him injuring himself. It was when I got hold of him it went from passive to reactive resistance.”

I am satisfied based on that evidence that Sergeant Dawson honestly believed that the use of PAVA spray was necessary to defend himself from being harmed by the Claimant and also, and more significantly, from the Claimant harming himself.

This is a more complex question to answer but I find the judgment of the Court of Appeal in Afriyie very helpful as it explains in a practical way where the trial judge in that case went wrong in addressing the “reasonable belief” issue. I have underlined what I think are particularly helpful parts of the judgment.

“41.

As I have said, there is no challenge to the judge’s finding that PC Pringle held an honest belief that it was necessary to use force. It is accepted that this is essentially a finding of fact. It may be that the judge was generous in her findings in relation to what the officer said on the Use of Force form and in his MG11 statement about the actions of the appellant in the moments leading up to the use of the taser. Had she found that his statements were deliberate misrepresentations of what happened, that would have been relevant to the issue of honest belief. She did not reach that view. She explained her reasons for doing so. Her conclusion was one that was reasonably open to her. On the question of the officer’s honest belief, the judge had the advantage of seeing and hearing PC Pringle’s oral evidence.

42.

Whether PC Pringle’s honest belief as the judge found it to be was objectively reasonable was a mixed issue of fact and law. For the reasons set out above the judge’s conclusion as to the officer’s honest belief that it was necessary to use force is not open to challenge. But the fact that the officer held that honest belief of itself cannot make it a reasonably held belief. In my view the judge’s conclusion on this issue did not fully address the reasonableness of the belief. The factors she identified as I have set out in short form were what led to PC Pringle holding his honest belief as to the need to use force. The judge did not explain in explicit terms why those factors made the belief one that was reasonably held. However, the judge’s finding of fact was that the situation was “fast-moving”. This was a significant feature of her determination of the reasonableness of the officer’s belief. She referred to this feature twice in the course of her analysis of the issue. A comprehensive assessment of the way in which the situation unfolded necessarily involved consideration of the oral evidence of the witnesses. To make such an assessment simply by reference to the BWV risks encroaching on the proper function of the trial judge. In the light of the judge’s finding on this point I do not consider that the judge’s determination that PC Pringle’s belief that it was necessary to use force was objectively reasonable can be overturned.

43.

I take a different view in relation to the question of whether the force used, namely the use of a taser, was objectively reasonable. The judge did not consider the proportionality of using a taser in the circumstances as she found them to be. She considered two options which had been raised during the trial. She rejected each of those options. She did not stand back and ask whether the use of a weapon which carried the risk of serious injury to the appellant was a reasonable response to the situation.

44.

The judge was aware that the APP guidance indicated that a taser was not to be used as a compliance tool. She accepted that there had been an element of such use by PC Pringle. Although the judge also found that there remained some threat which went to the reasonableness of the officer’s honest belief as to the need to use force, she did not consider how the use of the taser as a compliance tool affected the proportionality or objective reasonableness of its use. It went to the critical question: was the use of a taser proportionate and reasonable?

45.

In her assessment of the objective reasonableness of the use of a taser, the judge referred to PC Pringle having to make a split-second decision as to whether to engage the appellant in further negotiation or whether to discharge the taser. The judge was wrong to say that the situation as shown on the BWV footage involved a split-second decision by the officer. The appellant had been standing facing and talking to Mr Cole for at least 20 seconds before he folded his arms. He was in that position for another few seconds before the taser was discharged. Objectively, the officer was not faced with or forced into a split-second decision. More to the point, the binary choice identified by the judge did not involve any consideration of whether using a taser per se was reasonable. Even if “further negotiation with the (appellant) would be futile”, that did not mean that it was proportionate to use a taser on him. He was standing and talking to his friend. A proper objective analysis of whether using a weapon classified as a firearm was reasonable would have led the judge to conclude that it was not. Her conclusion that further negotiation would have been futile did not amount to the necessary analysis of objective reasonableness of the nature and degree of force used.

Conclusion

46.

In my judgment the appeal should be allowed. The use of a taser was not objectivelyreasonable in the circumstances notwithstanding PC Pringle’s honest belief as to theneed to use force. The trial judge made findings on all issues in relation to quantum incase she were found to be wrong in relation to any aspect of the merits of the appellant’sclaim. Neither party seeks to challenge those findings. An award of general and specialdamages in accordance with the conclusions of the judge will follow.

LORD JUSTICE DINGEMANS

47.

I agree with both judgments.

THE BARONESS CARR OF WALTON-ON-THE-HILL, LCJ

48.

I also agree. Mr Clayton KC for the appellant focussed heavily on PLAN, submitting that the judge erred in failing to consider lawfulness by reference to PLAN ie the APP guidance requiring discharge to be “proportionate, lawful, accountable and absolutely necessary”. It is not surprising that the judge did not carry out this exercise, not least given that PLAN (and any breach of PLAN) was not relied upon before her. In any event, I do not consider that PLAN adds materially to the requirement of reasonableness; notions of proportionality and necessity are inherent in that requirement.

49.

Beyond that, as William Davis LJ identifies, tasers are prohibited firearms. They arepotentially lethal weapons (see MCCarthy at [18]). PC Pringle had agreed in evidence that the appellant could have been killed by the use of the taser. The use of a taser onthe appellant, who at the time of discharge was standing still in a non-aggressive stancewith his arms folded and talking to his friend, was not objectively reasonable in thecircumstances.”

It is therefore essential that I consider the circumstances of the case in the lead up to Sergeant Dawson deploying PAVA spray on the Claimant. In so doing, I am very mindful of the guidance of Mr Justice Turner in Goodenough and Anor v Thames Valley Police (2020) EWHC 695 (QB) that I should “take care not to judge the actions of the officers by unrealistic standards of detached reflection and retrospective analysis”.

We know that the Claimant’s behaviour was very concerning. In the two days including this incident, he had threatened to jump from the Menai suspension bridge, he had been head banging and he had twice had his jogging bottoms removed from him as he had twice used them to form a ligature around his neck. His risk of self-harm could not be underestimated. For a custody sergeant who is responsible for keeping him safe whilst he was in custody, he would be a particular concern.

We know that Sergeant Dawson was busy before deciding to go to the cell. He was in the process of booking in another detainee and needed to get back to that job as soon as possible.

We also know that Sergeant Dawson did not think that the Claimant’s behaviour was threatening towards him until he took the Claimant’s arm and felt it tense up. Sergeant Dawson felt safe to enter the cell without his colleagues, with his colleagues standing outside the cell ready to intervene if required.

Much has been made of Sergeant Dawson’s decision to take the PAVA spray into the cell with him. PC Kinnaird explained that that was simply good planning and I accept that evidence.

PAVA spray has not killed anyone and appears at present, and certainly at the time of this incident, to be a relatively safe means of incapacitating individuals.

I note that Mr Bracegirdle, a personal safety trainer with North Wales Police who had trained Sergeant Dawson in the use of PAVA spray at a personal safety refresher training course in November 2018, provided evidence to the IOPC that “Captor is classed as a ‘secondary tactic’”. However, he stated that students are taught that the use of Captor spray at distances of less than three feet is not advisable, due to the risk of detaching the subject’s retina because of the pressure at which the spray is discharged. He stated that, during the personal safety training, it is explained that the use of Captor spray at less than one metre may be justified if, for example, an offender had an officer in a headlock at close quarters. He stated that he referred to this as an example of the level of threat that an officer would have to be facing to justify the use of Captor spray at this distance, given the risk of injury to the subject. He stated that the risk of injury to the officer would have to be greater than the risk of eye damage to the offender to justify the use of Captor spray”.

Valerie Williams-Gray, the lead North Wales Police Personal Safety Trainer, told the IOPC that the NDM (National Decision Model) is addressed in the refresher training and that as part of that “dynamic risk assessments are discussed, and officers taught to consider both positive and negative impact factors”. She stated that officers are taught that “impact factors” are factors which might lead to a perception formed by an officer of a threat and might include, for example, the size and gender of an individual who might be posing a threat. She stated that “impact factors are important when justifying a use of force……Captor spray can be considered as an option to stop someone from self-harming in accordance with a police officer’s responsibilities under Article 2 of the Human Rights Act, preservation of life.

Whilst PAVA spray appears to be significantly less risky than a Taser, it is clearly not without risk. It is also not known how it would be likely to affect an already vulnerable individual such as the Claimant who was already self-harming.

Sergeant Dawson wanted to stop the Claimant self-harming by banging his head against the wall. He says that he had tried to communicate with the Claimant but received no reaction at all and therefore moved up a level to the use of PAVA spray. I find that decision to be objectively unreasonable. He did not communicate properly with the Claimant. Communication involves sharing information with others by speaking, moving one’s body or using other signals. Here, Sergeant Dawson shouted to the Claimant through the hatch so the Claimant would not be able to see him, an important part of communicating. Only 9 seconds elapsed between the hatch being lowered and Sergeant Dawson entering the cell. I accept that whilst one cannot hear anything on the CCTV other than “hey fella” at that stage, Sergeant Dawson is likely to have told the Claimant to “stop it” or similar, but what do we see on the CCTV? The Claimant does not react at all. He continues banging his head against the wall. The door is opened (and that would have been noisy) and still the Claimant does not react, he continues banging his head against the wall. As soon as the door opens, Sergeant Dawson walks with purpose towards the Claimant. He does not stop at the door and try to engage with the Claimant. He says that he carried on, as he approached the Claimant, to tell him to “stop it”. Whilst I cannot see him on the CCTV speaking to the Claimant at this point (and there is no audio in the cell area) I accept that it is likely that he probably told the Claimant to stop it. The Claimant did not deny that. The Claimant says in his IOPC statement that he told the sergeant to “go on, spray me”. However, I find this difficult to accept. The Claimant has been subjected to PAVA spray on three occasions in his life (including the index occasion) and it would appear that in his statement to the IOPC he has mixed these incidents up. In addition, there is simply not the time for him to have said this. I do not see him saying anything on the CCTV footage. He is in his own little world, banging his head on the wall and he is only awoken when Sergeant Dawson takes him by the arm and moves him to face him and then proceeds to spray him twice with two short bursts of the PAVA spray. It is also significant that Sergeant Dawson said that he did not feel threatened by the Claimant until he held the Claimant’s arm and felt him tense up so even if the Claimant did say something to the Sergeant at that stage, I am satisfied that it did not make Sergeant Dawson feel threatened.

I am not surprised that the Claimant’s arm tensed up when Sergeant Dawson held him by the arm. Sergeant Dawson does not stop moving from entering the cell to deploying the spray. When he takes the Claimant’s arm, it is clear that it is with the sole purpose of ensuring that the Claimant is facing him so that he can deploy the PAVA spray onto his face to be effective. He does not pause in this movement at all. I am confident from having watched the CCTV that when Sergeant Dawson took the Claimant by the arm he did not do so intending to move him away from the wall to stop the head banging; he does it with the sole intention of deploying the PAVA spray. He keeps hold of the Claimant whilst he deploys the PAVA spray up close. Anyone would tense up in such circumstances.

Sergeant Dawson and his colleagues were clearly faced with a difficult situation with a detainee who was self-harming and that behaviour had to be, and indeed was, taken seriously. However, this was not an immediately urgent situation. It was very different from, for example, someone standing with a knife to their throat threatening to slash it.

I have watched the head banging of the Claimant. He stands on both feet. He moves forward with his entire body and hits his head on the wall. The force used by the Claimant is such that it can be heard in the custody desk area but the Claimant is not flinging his head back and forth such that he is going to render himself unconscious. He appears to have drawn blood, but he already had a graze to his forehead when he was brought into the custody suite.

Sergeant Dawson and his colleagues had time to plan what should be done. No one seems to have considered asking the nurse to speak to the Claimant at that stage. I appreciate that may have taken some time to arrange.

It is clear that Sergeant Dawson did not have time to deal with the Claimant. He was booking another person into custody so if he did not have the time to dedicate to himself to resolving the issue with the claimant, he should have asked someone else to deal with him; others were, after all, present.

Even if Sergeant Dawson had time to deal with the Claimant, he should have tried communicating with the Claimant in the first instance. He did not. He merely gave the Claimant orders to stop hitting his head on the wall. This was a vulnerable and sick man. The Claimant was not engaging. He was in his own little world. He did not react when Sergeant Dawson spoke to him. The priority had to be trying to get through to the Claimant. Sergeant Dawson did not stand at the door of the cell, for instance, and try to engage with the Claimant. He did not approach him slowly and touch him gently to try to attract his attention. He simply walked with purpose into the cell, apparently telling the Claimant to stop, turned him to face him and sprayed him twice at close range in the face with PAVA spray.

It was interesting when Sergeant Dawson gave his evidence that he kept telling me about the advantage of PAVA spray over escalating this situation from using PAVA spray to using a hands-on approach with the Claimant. However, he did not appear to me to have considered communication as being the key here. It is significant that the custody log shows that on the previous day when the Claimant was spoken to in a calm manner, he reacted well. I have seen CCTV of the custody sergeant on the previous day. He is calm and courteous towards the Claimant. That helps. CDO Edwards (a retired police officer himself) told me that he had not experienced any issues with the Claimant (apart from the self-harming). Communication should have been properly attempted prior to embarking on the PAVA spray.

There is no evidence that Sergeant Dawson considered the disadvantages of deploying PAVA spray on a vulnerable, mentally ill individual such as the Claimant. Whilst I am not saying that he planned to spray him as early as when he picked up the spray in the custody desk area, it was clearly an option. He had time there to consider those disadvantages.

Whilst he says that the PAVA spray was successful, it was successful in the sense that the Claimant stopped head banging and once the effects of the spray eased off, he slept through the night. However, we also hear the Claimant crying out in considerable distress once the PAVA spray is deployed. PC Kinnaird was clearly concerned about him and sat with him, stroking his back. That kindness should have been shown before the spray was deployed. It is not likely to have taken much time. In fact, it is likely to have taken less time and manpower than several officers having to restrain the Claimant from lashing out and rubbing his eyes, staying with him in the exercise yard after the spray had been deployed and the extra work involved as a result of him being placed on level 4 observations once more.

Accordingly, I find that the use of PAVA spray was wholly unreasonable in all the circumstances. Lesser measures could and should have been used.

Assault and battery are torts actionable in their own right. This means that it is not necessary to prove that there has been damage before a claim can be brought, and a successful Claimant will always be entitled to at least nominal damages, even if they cannot point to any real loss (see Ashley v Chief Constable of Sussex [2008] UKHL, 25 at 160]. As was said in Alseran v Ministry of Defence [2017] EWHC 3289 at §876, this “kind of injury which is inherent in the wrong itself is often referred to as “moral injury”.

An award of basic damages can arise even if the proven tort did not occasion serious injury (such as to bring about assessment for personal injury under the conventional JC guidelines), particularly if it occurred in circumstances that caused substantial fear or humiliation to the victim. These factors are also relevant to aggravated damages, and the Court must guard against ‘double counting’ when undertaking a quantification exercise.

In addition to general damages (above), the Claimant suggests that aggravated and/or exemplary damages are appropriate in this case.

Both aggravated and exemplary damages are discretionary but there is a clear conceptual distinction between them. Aggravated damages are compensatory, awarded in addition to basic damages to ensure that the total award properly reflects any aggravating circumstances which caused additional injury to the Claimant’s feelings. In contrast, the object of exemplary damages is not to compensate the Claimant but to punish the Defendant (notwithstanding that the Claimant receives any award made).

Aggravated damages may be payable in addition to general or special damages. They are conventionally seen as an extra element of compensation in recognition that the exceptional motives, conduct or manner of the Defendant have aggravated the Claimant's damage by intangible injury to personality (insult, humiliation, degradation, indignation, outrage, distress, hurt feelings, etc). The Court of Appeal in Thompson and Hsu v Commission of Police for the Metropolis [1998] QB 498, described their application as follows:

“Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award”

Aggravating features can include humiliating circumstances at the time of arrest, or any conduct of those responsible which shows that they had behaved in a high-handed, insulting, malicious or oppressive manner. Aggravating features can also include the way the litigation and trial are conducted.

In the Court of Appeal in Rowlands v Chief Constable of Merseyside,' Moore-Bick L] said: [14] “The important factor to bear in mind is that they [Aggravated damages] are primarily intended to be compensatory, not punitive. It follows that any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages. However, the distinction between basic and aggravated damages will continue to have a part to play as long as the right to recover for intangible consequences such as humiliation, injury to pride and dignity as well as for the hurt caused by the spiteful, malicious, insulting or arrogant conduct of the defendant attaches to some causes of action and not others”.

The relevant guiding principles for aggravated damages were helpfully distilled in Gulati v MGN Ltd [2015] EWHC 1482 (Ch) at [203-6] where Mann J drew from Underhill J’s reasoning in Commissioner of Police for the Metropolis v Shaw [2012] ICR 464:

In Rowlands the Court of Appeal recognised that damages for distress, humiliation and injury to feelings are sometimes, in fact, awarded as part of basic damages and cited Richardson v Howie [2004] EWCA Civ 1127as an example of this. In this vein, the High Court in Stewart v Commissioner of Police for the Metropolis [2017] EWHC 921 (QB)declined to make an award of aggravated damages in a case involving false imprisonment and assault, the judge stating that instead (para 22): “The compensation awarded in each of the claims above has been adjusted upward in the Claimants' favour where appropriate to take account of the circumstances of the incident”.

In Thompson the court felt it would be difficult to indicate a precise arithmetical relationship between basic damages and aggravated damages, but: “... we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest”.

If the circumstances were to be serious enough to merit aggravated damages, the Court of Appeal felt that an award should not be less than £1,000. However, Thompson it was further stated that “the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned."

Lastly, it should be noted that a Claimant's own conduct, behaviour and/or provocation can be taken into account in calculating aggravated damages. As the Court of Appeal in Thompson put it:

“In an appropriate case the jury should also be told that even though the plaintiff succeeds on liability any improper conduct of which they find him guilty can reduce or even eliminate any award of aggravated or exemplary damages if the jury consider that this conduct caused or contributed to the behaviour complained of” (guidance number 14).

The Claimant contends for a figure of £3,000 to £3,500 as a global figure to represent both basic and aggravated damages. The Defendant submits that if I decide to opt for the global approach, a figure of no more than £1,500 should be awarded.

Counsel for the Claimant submits that damages simply for wrongful handcuff application may attract an award of at least several hundred pounds for basic damages.

Counsel for the Claimant submits that given the Claimant’s vulnerability and the comments made on CCTV that both basic and aggravated damages should be awarded. Counsel for the Defendant submits that I should award basic damages only.

I am conscious that during the course of the hearing, many of the Claimant’s points about the Defendant’s witnesses “goading” the Claimant after the event have fallen away. There was an issue in that some of the comments which the IOPC investigator had recorded in his report as having been said by the officers could not be heard on the CCTV produced to me. I do note that Underhill J in Commissioner of Police for the Metropolis v Shaw (2012) ICR 464 favoured wrapping up aggravated damages in the overall figure to cover basic damages and aggravated damages. I do consider that aggravated damages should be awarded in this instance as well as basic damages. The Claimant was a particularly vulnerable individual and the CCTV footage shows that he was taken completely by surprise by the deployment of the PAVA spray. He was considerably distressed as a result and that distress can be heard on CCTV footage. I award him the figure of £2,500 in respect of basic and aggravated damages. I do not decrease my award to take into account the Claimant’s conduct. He was at the time experiencing a mental health crisis. He was entirely in the hands of the custody staff and at the material time, it is clear that he was simply a person in need.

Thompson held [at 516.G] that “though it is not normally possible to award damages with the object of punishing the defendant, exceptionally this is possible where there has been conduct, including oppressive or arbitrary behaviour, by police officers which deserves the exceptional remedy of exemplary damages”.

Further guidance was given in Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, that, while the conduct had to be “outrageous” such that it called for exemplary damages to mark disapproval, “[t]here is no need for malice, fraud, insolence cruelty or similar specific conduct”. However, in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12Lord Dyson held [at 166] that the officials’ lack of ulterior motives or malice was a material factor in not awarding exemplary damages. Taken together, Muuseand Lumbasuggest that, whilst bad faith or malice are not pre-requisites for exemplary damages, their absence will weigh against such an award.

The Court of Appeal in Thompsonlaid out a number of further principles in respect of exemplary damages [516-517]:

In Kuddus v Chief Constable of Leicesietehrs [2001] UKHL 29 Lord Nicholls commented that:

“The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant's conduct calls for a further response from the courts.

On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff's rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna”.

Further, in the recent judgment of Nickin J. in Underwood v Hampshire Hospitals NHS Trust [2022] EWHC 888 (QB), para 55 it was held that:-

“I should record that the claim for exemplary damages ought never to have been included against the Second Defendant. On behalf of the Claimants, Mr Archer did not press the claim at trial (but neither did he formally withdraw it). Claims for exemplary damages are wholly exceptional. The cases in which such damages can properly be claimed are very few; those in which they are awarded fewer still. It is never appropriate to add a claim for exemplary damages simply to mark how upset the claimant is about the defendant’s conduct, or as some sort of negotiating strategy.

Thompsonconfirmed that exemplary damages can be awarded where the claim is brought against a chief officer on the basis of vicarious liability, but that “it is more difficult to justify the award where the defendant and the person responsible for meeting any award is not the wrongdoer, but his ‘employer’” [512.H].

In the case of Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49, the Court of Appeal noted this point in Thompsonthat the vicarious nature of a Defendant’s liability is a relevant consideration weighing against the award of exemplary damages, but added that “it cannot of itself be decisive: indeed, almost invariably in these kinds of cases the defendant is potentially liable on a vicarious basis” [para 51].

In relation to quantum, Lord Woolf MR commented in Thompsonthat it will be “unusual” for the addition of exemplary damages to basic and aggravated damages to produce a total figure for basic, aggravated and exemplary damages which is more than three times basic damages [518.B]. So for example, and as contended for by the Claimant, if basic damages of £1,000 and aggravated damages of £2,000 are awarded, it would be ‘unusual’ to award exemplary damages of more than £3,000.

Thompsongave the following further guidance [at 517.C]: “Where exemplary damages are appropriate they are unlikely to be less than £5,000” (which in ‘todays’ money is £12,635).

In assessing whether or not this case is so exceptional so as to justify contemplation of aggravated damages, the court must consider the issue of double counting as highlighted in Thompson[513A]:-

The Claimant contends for a figure of “at least £11,000” by way of exemplary damages. However, his Counsel has, sensibly, not really pushed the point at trial. Applying the case law, it appears to me that this is not an exceptional case which justifies a separate award of exemplary damages. Furthermore, the Claimant is adequately compensated by the award for basic and aggravated damages which I have made.